Congress and the Administration Agree: the Government Can Indefinitely Detain US Citizens

I’ve got a long post mostly written on the debate between two awful positions on the detainee provisions in the Defense Authorization.

But let me make something clear. Both sides have already bought off on one principle: that the Administration can indefinitely detain US citizens.

Dianne Feinstein made this clear in her comments yesterday in the Senate (in which she was reading from a letter SJC and SSCI Democrats wrote).

Section 1031 needs to be reviewed to consider whether it is consistent with the September 18, 2001, authorization for use of military force, especially because it would authorize the indefinite detention of American citizens without charge or trial …..

And yet while in the rest of her speech, DiFi laid out problems she had with sections 1032 (mandating military detention in most cases), 1033 (requiring certification before DOD transfers detainees to a third country), and 1035 (giving DOD precedence in detainee decisions), she made not a peep objecting to (as opposed to raising cautions about) this ability to indefinitely detain American citizens.

In response to DiFi’s speech and the Administration’s veto threat, Carl Levin revealed that the Administration’s complaints about the language authorizing military detention don’t stem from any squeamishness about indefinitely detaining Americans. Indeed, as Levin made clear, the Administration asked that limitations on applying the section to Americans be taken out of the bill.

The committee accepted all of the Administration’s proposed changes to section 1031.  As the Administration has acknowledged, the provision does nothing more than codify existing law.  Indeed, as revised pursuant to Administration recommendations, the provision expressly “affirms” an authority that already exists.  The Supreme Court held in the Hamdi case that existing law authorizes the detention of American citizens under the law of war in the limited circumstances spelled out here, so this is nothing new.

The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

And given that SASC already voted to support this section by significant margins, it appears clear it has plenty of support.

So make no mistake. As I’ll show in my longer post, there are clear differences between the two sides (though I find both sides problematic). But whether or not the government can indefinitely detain Americans is not one of them.

Update: I took out “militarily,” as 1032 exempts automatic military detention for US citizens.

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bmaz @MasaccioFDL Today is a good day. Been a good last week in couple of regards. That is rare. But I will take it. All day, versus alternative.
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emptywheel @morphizm http://t.co/6ZgUMLAZxU In what election would I vote for Paul in?
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emptywheel @morphizm In Paul's case it was in a 2011 amendment to NDAA to repeal the AUMF. http://t.co/v8JmADvG3U
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bmaz @JulieATate I am already having an issue. Kobe Steak Fries: http://t.co/C8o6o4EPDL
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emptywheel @empiricalerror Mind if I borrow that for a post?
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emptywheel RT @ddayen: USPS dithered, so now, Walmart Bank. Enjoy the temporary good value, America! http://t.co/N9ZRjbEAyu
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bmaz @jilliancyork Ms. Yikes, I know you've not had a fix lately. That said, Kiki wants to shed fur on you personally http://t.co/noTLuqPJBj
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emptywheel I know I already claimed my winnings on this, but since it's official, Rand Paul & I did warn you not to leave that Iraq AUMF lying around
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bmaz @PeskyJski @AuntyMoney Understand you, I have a thing for polar bears, so I am a little sensitive (my dog): http://t.co/zQFIvkUsRA
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emptywheel @empiricalerror Do you have a full screen cap of this--I assume it's the interim correction?
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emptywheel RT @empiricalerror: @emptywheel I engaged him (?) in this thread: https://t.co/QmI56IyoLZ Article was corrected twice after that.
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emptywheel @sarahjeong That's because only white people have pink hair, duh.
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